Wednesday, January 29, 2003

We need to seriously strive for reforms that will re-instill public confidence in the Judiciary

by Charles Hector

Far-reaching reforms are needed to re-instil public confidence in the Judiciary.

When in December 2000 , Tan Sri Hj Mohd Dzaiddin Hj Abdullah was appointed as the Chief Justice of the Federal Court, and hence the head of the Judiciary, the Bar Council had great expectations of him to rejuvenate the Malaysian Judiciary Ever since the 1988 Judicial Crisis which saw the then Lord President and two Supreme Court Judges dismissed, the Malaysian Bar never placed any great hope in Dzaiddin�s two predecessors.

But two recent events have caused the Malaysian public to question whether their hopes and aspiration for a renewed Dzaiddin-led Judiciary showing greater commitment to justice and the Rule of Law have been misplaced

First, the recent Federal Court decision in Anwar Ibrahim�s corruption case was basically an affirmation of the High Court decision which was earlier criticized not only by the Malaysian Bar but also international observers and groups. Some of the criticisms and concerns about the High Court trial of the former Deputy Prime Minster included:

the choice of the judge and the manner by which the judge was chosen to hear the case;

refusing bail;

expunging of evidence given under oath;

preventing the accused from raising every possible and conceivable defence;

compelling the defence to state beforehand what evidence the defence sought to adduce from various witnesses;

disallowing witnesses from testifying and making rulings as to relevancy without first hearing their testimony; and

citing and threatening defence lawyers with contempt proceedings including sentencing one of them to three month�s jail for contempt while discharging his legal duties to his client.

Second, there was the spectacle initiated by comments of a High Court Judge, while delivering a judgment in an accident case in the Penang High Court, about how a certain Court of Appeal Judge had been treating the former through the latter's judgments. In his written judgment, Justice R.K. Nathan accused Court of Appeal judge Gopal Sri Ram of making personal attacks against High Court judges, and targeting him (Nathan) for personal vilification in open court.

It may be good to recapitulate briefly the history of the Malaysian Judiciary, in particular the events that led to the slide in the public confidence of the Judiciary.

Role and Function

The Judiciary is the third arm of the government; the other two are the Executive and the Legislature. In a democracy, it is essential that there should be separation of powers among these three arms. Simply put, the Legislature (the Parliament) makes the Law. The Executive (the Prime Minister and the Cabinet) administers the affairs of state according to the Law. The Judiciary ensures that all is and was done according to law. The doctrine of separation of powers ensures a system of check and balance, and that there is no abuse of powers.

As the late Justice Eusoffe Abdulkader noted in his judgement in the Datuk Harun bin Haji Idris case, �The court stands as an arbiter in holding the balance between individuals and between the state and the individual, and will not have the slightest hesitation to condemn or strike down any statutory shelter for bureaucratic discrimination, any legislative refuge for the exercise of naked arbitrary power in violation of any of the provisions of the Constitution and equally any executive action purported to be made thereunder�

Independent and Fearless

To carry out its functions , the Judiciary must be independent, and Judges must be concerned only with upholding the cause of justice without fear or favour. The words of Sultan Azlan Shah, a former Lord President (or Chief Justice as the office is now called), during a Public Lecture in Universiti Sains Malaysia in 1986, adequately explains the need for judges to be independent:

�..The Judges are independent of all � the executive, Parliament and from within themselves � and are free to act in an independent and unbiased manner. No member of the Government, no Member of Parliament, and no official of any Government department has any right whatever to direct or influence the decision of any of the judges. It is the sure knowledge of this that gives the public confidence in the judges. The judges are not beholden politically to any government...�

In fact, at one time the Malaysian Judiciary was held in very high regard. The Chairperson of the Malaysian Bar in 1963, Datuk SM Yong, had this to say about the judiciary:-

�...every person, whether he is rich or poor, high or low, of whatever race, color or creed is equal in the eyes of the law. Justice will be administered without fear or favor...[and for this] we must have an impartial, incorruptible, and independent judiciary. Our Federal Court is such a judiciary.�

1988 Judicial Crisis

Wu Min Aun in his article, �Judiciary at the Crossroads� (in Public Law in Contemporary Malaysia) best explains the events that led to the erosion of public confidence in the judiciary.

�Public confidence in the judiciary started to slide when the executive commenced its attack as a result of several decisions which went against the government. Political rhetoric surrounding the amendments to Article 121 of the Federal Constitution merely exacerbated it. It deteriorated further when the Lord President and two Supreme Court judges were dismissed.�

The Ayer Molek Case

Then there was the controversial Ayer Molek Rubber Co case, which saw the Court of Appeal criticize strongly the decision of the High Court. The Court of Appeal went so far as to say that from the facts, it may �...give the impression to right thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon.� The Court of Appeal pointed out the judge had ignored provisions of the law, and also seemed to allege that injustice was perpetrated by the court.

Then the Federal Court, upon further appeal, not only overruled the Court of Appeal judgment but �also berated the appeal judges� for �bringing the administration of justice into disrepute�. The Chief Justice, Tun Eusoff Chin, in delivering the judgment of the Federal Court asked:

�Why should the learned judges of the Court of Appeal go on a frolic of their own and find fault with the High Court judge, criticize the conduct of the applicant�s solicitors in a very disparaging manner. Their own conduct would tend to show that they were themselves biased.�

Wu Min Aun added :

�The Malaysian Bar [claimed] that the Federal Court was not properly composed in accordance with the constitution. It pointed out that one of the panel members, a High Court judge, was not qualified to sit on the Federal Court bench. It was argued that apart from its permanent judges, only Court of Appeal judges could sit as Federal Court judges if the Chief Justice nominated them. The revelation that the Federal Court might not be properly constituted added fuel to further speculation that there might have been an elementary mistake at best and �stacking� of judges at worst. Whichever it was, the case did enormous damage on perception of the judiciary as an impartial adjudicator.�

The New Straits Times (3 Sept 1995) also stated in an article:

�...questions are already being asked as to why the courts and judges are speedy in hearing commercial cases, especially when big companies and big businesses were involved, and the apparent ease with which parties choose which courts to go to and which judge to seek out... This is inevitable when thousands of criminal and civil cases have been held up for years. Some remand prisoners have to languish in jail for years while waiting to stand trial.�

Poison Pen Letter

Let me again quote Wu Min Aun�s article:

�Then, in early 1996 a thirty-three page anonymous document alleging judicial misconduct surfaced. It was circulated among the legal fraternity accusing several judges of corruption, abuse of powers and personal misconduct. It was an extraordinary document containing 112 allegations comprising 39 charges of corruption, 21 of abuse of power and 52 of misconduct, immorality or other indiscretions. It claimed corrupt payments of RM50,000 with recipients graduating to accepting millions from named persons.� In July of the same year, the Attorney General stated that police investigations had revealed that the allegations contained in the poison-pen letter were �wholly untrue and baseless�

CJ's Holiday

To ensure the independence of the judiciary, it is essential that the conduct and behaviour of a judge should not give rise to suspicion that he is not impartial. In early 1998, when photographs of Tun Eusoff Chin holidaying with a lawyer who also had appeared before the same judge, were published on the Internet, it was a matter of public concern.

Later, in mid-2000, the Minister in the Prime Minister�s Department, Datuk Dr Rais Yatim, in response to a a question about a photograph showing the Chief Justice, said that it had been intimated to the Chief Justice that this was improper behaviour and that such socialising was not consistent with the proper behavious of a judicial personality. Calls for more serious action to be taken were not heeded.

Judge Receives "Directive"

In June 2001, High Court Judge Datuk Muhammad Kamil bin Ahmad when declaring the State election held in March 1999 for the Likas Constituency in Sabah, null and void, stated that he had received a directive over the phone to strike out the two election petitions without a hearing. The Malaysian Bar viewed this as an �affront to judicial integrity and independence of the learned judge and the Rule of Law� and called for action by the authorities concerned. Alas, nothing came out of that call.

Anwar's Corruption Case

Following the Federal Court decision dismissing Anwar�s appeal, Mah Weng Kwai, the President of the Malaysian Bar was quoted in Malaysiakini as saying, �But the Court of Appeal had found no miscarriages of justice and so did the Federal Court today. Anwar�s trial has gone through the due process of law, and we need to respect the decision of the court.� He was further quoted as saying, �If Anwar�s supporters, the reformasi group or the public feel that the court has been unfair, the general election is the best avenue for them to show their discontent.�

Mah was barraged with criticism from members of the Bar, the Kuala Lumpur State Bar Committee, NGOs and political parties. There were calls for his resignation.

Six days later, Mah issued another statement. Mah withdrew his earlier remarks, stating that they were merely his personal comments, not the statement of the President of the Malaysian Bar. In the second statement the Malaysian Bar expressed its dissatisfaction with the �unusual manner in which the trial itself was conducted.� This was consistent with the statement issued by R.R. Chelvarajah in his capacity as the Chairman of the Bar Council on 17 April 1999.

Mah is human and not infallible. He made a mistake, and it must be pointed out that previous presidents of the Malaysian Bar had made mistakes before.

Mah was the �soft target�, but in essence, the strong reaction to his initial remarks reflected the lawyers and the public�s dissatisfaction with the Federal Court decision.

When Dzaiddin was appointed as the Chief Justice of the Federal Court, the Kuala Lumpur Bar Committee newsletter questioned: �Can Dzaiddin Deliver?� This question must now be asked again.

Re-arrested After Acquittal

The action of the police in re-arresting 10 men who were acquitted of quintuple murders by the Ipoh High Court on 31 July 2002 is another cause for concern. The police used the Emergency (Public Order and Prevention of Crime) Ordinance 1969, a preventive detention law with powers similar to the infamous Internal Security Act(ISA), to arrest these men. Like the ISA, after 60 days, the Minister can issue a 2-year detention order.

The 10 men had been tried in open court. The High Court Judge after considering the evidence before the court had acquitted them. The action of the police is an act of �disrespect� to the High Court and the Judiciary. Is this symptomatic of the �slide in the public [or police in this case] confidence in the Judiciary�

Impartial and Incorruptible

At its highest levels, judges of the Judiciary is made up of the High Court, Court of Appeal and Federal Court. To place too high an expectation on the Chief Justice of the Federal Court alone to stop the slide in public confidence in the Judiciary may be wishful thinking.

Judges must understand that it is their role and duty to act in an independent and unbiased manner and to treat every person, whether rich or poor, of high or low status, of whatever race, color or creed equally in the eyes of the law. Judges must without fear or favour administer justice. Of course, when they are true to their office, they may be subjected to persecution from certain quarters. They may be transferred to courts in �far places�. They may never be elevated to higher courts. They may be victims of false charges. They may even be removed from office. But judges must be true to their office and calling.

The Malaysian Judiciary is not directly elected by the people. The judges are appointed. In some countries, there are elections for the members of the Judiciary. Maybe, it is time for us to seriously consider whether the constitution should be amended to allow judges to be elected.

Presently the appointment of judges is conducted under a shroud of secrecy. Maybe, there is a need to consider whether the names of future judges and/or judicial commissioners should be made public, and public objections be invited and considered before appointing them.

With the advent of the Internet, there has been an increase in public criticism of judgments and judges. This is important and necessary to stimulate judicial reform and improvements in the administration of justice and to forge an impartial, incorruptible, and independent judiciary for Malaysia. In this regard, Lord Denning's words are worth repeating:

�It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decision erroneous, whether they are subject to appeal or not. All that we ask is that those who criticize us will remember that, from the nature of our office, we cannot reply their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what is right."

It is easy to give up hope in our Judiciary, but if we do so all is lost. What we need more than ever before is to strive for far-reaching reforms that will re-instil public confidence in the Judiciary.

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